Obeying the Law is Hard

The The FCPA Blog recently published a useful roundup of enforcement actions taken under the US Foreign Corrupt Practices Act during 2011. It’s a fascinating window into what is a huge and fascinating topic, namely law-breaking by or at corporations.

For businesses, following the law doesn’t exhaust ethical responsibilities, but it’s an awfully good start. Most of us probably think that following the law is absolute minimally-decent behaviour for business. You absolutely must follow the law, and a business certainly shouldn’t be praised for achieving that basic minimum, right? But in fact, it’s not always so easy for companies to follow the law.

Part of the problem is that “the law” is not a simple, straightforward thing. Particular laws can be vague or ambiguous. And what counts as legal cannot always just be looked up, in part because so much depends on prosecutorial discretion. Many people have commented on the difficulty of knowing, in advance, what sorts of behaviours prosecutors are going to decide to take a swing at, whether in applying the Foreign Corrupt Practices Act or deciding when CEOs have neglected their duties to shareholders.

The other problem has to do with scale. If you operate a business with 100,000 employees, there’s a pretty high likelihood at any given moment that, despite your best efforts, one of those employees is doing something either illegal or in a legal grey zone. Compare how likely it is to achieve a zero crime rate in a town of 100,000 citizens. Of course, the citizens of a town aren’t part of an authority hierarchy the way that employees of a corporation are, but still you see the problem scale brings.

(Also compare this to the FDA’s food contaminant standards. The fact that there’s an allowable number of rodent hairs for a jar of peanut butter may be disgusting, but it shouldn’t be surprising: it is inconceivable that there could be a large-scale food-production system with zero contaminants.)

Another factor is the number and complexity of laws and regulations. For you & me, the legal rules to follow in our everyday lives are few and simple and minimally disruptive: don’t kill, don’t steal, etc. Not so for many companies. Companies in some industries are subject to perhaps hundreds or thousands of separate legal requirements. Note, for instance, that the full text of the Dodd–Frank Wall Street Reform and Consumer Protection Act is over 2000 pages long.

A final factor worth pointing out is the apparently-criminogenic nature of corporate workplaces. For a range of reasons much more complex than is commonly acknowledged, people seem more willing to break the law at work than they are at home. Among the likely factors are competitive zeal, the desire for career advancement, tunnel vision, and group-think.

The net result of all these factors is that, for a big company, consistently complying with the law is actually a significant achievement. Getting employees consistently to follow the law is in fact a fundamental managerial challenge. The US Federal sentencing guidelines reward companies for even attempting to do a competent job of implementing an ethics and compliance program.

But compliance with the law is unlikely to win a company kudos from very many observers, focused as so many are on the “above-and-beyond” stuff normally associated with Corporate Social Responsibility. But when a particular behaviour is so incredibly difficult, and so incredibly important, what on earth could possibly be more deserving of praise?

3 comments so far

  1. Urs Mueller on

    Chris – thanks for this interesting follow-up on your “Whats Legal Isn’t Always Ethical” post! Let me alobrate on my comment to this old blog by adding one more facet to this blog: Sometimes companies can profit from violating the law – and this behavior can simultaneously be ethically correct and socially desirable.

    Take the example of media companies. If TV channels or newspapers use illegal ways to obtain information, e.g. about political scandels – isn’t that desirable?

    In fact: I know of several media companies that explicitly do NOT include a clause like “The employee will obey the law.” into working contract or internal leadership guidelines for their journalists…

    Cheers
    Urs

  2. […] weeks ago we discussed why what’s legal isn’t always ethical; last week we explored why following the law can be hard and hence breaking the law sometimes ethically […]

  3. andreabcreative on

    I think your post brings up many distinctive, applicable points related to the complexity of ethics as related to corporate responsibility. Following the law is hard; it’s why corporate law (and the many supporting roles) are a full-time profession—detailed and complex.

    Many times, as individuals, we assume that individuals have the same ethical scale that we do as well—and it goes the same for businesses. One might make an assumption that companies, especially corporations, operate with similar moral radars. Not true. “We cannot assume that any given person—not even a neighbor—protects and promotes the same goods as we do” (Arnet et al., Communications Ethics Literacy, 2008, pg. 2). And yet we do. We do all of the time. And this tends to cause unrest in our understanding and acceptance of the myriad of ethical discussions and decisions.

    Sissela Bok (1979) makes an interesting point in stating “that justification for a lie is possible when one can provide a public accounting for why a lie can be told.” And for individuals, it seems that the line between good/bad becomes significantly more clear when Bok’s rationale is put into perspective—“the higher good of human life justified the [lie].” (Arnett et al, 2008, pg. 12)

    But does the same hold true for corporations? Would the public accept a lie for the greater good of human life? It seems that individuals, and collectively as the public, think of absolutes for others—especially corporations—but tend to be more forgiving when looking at ourselves, understanding the necessity for shades of gray. Seems like a confused version of “the plank in your own eye and the speck in your brothers” from the Bible.


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